Jury Nullification

Does Jury Nullification Undermine the Rule of Law?

In theory, yes. But not in the world we actually live in, where law enforcement is already rife with numerous discretionary decisions made unavoidable by the fact that we have far too many laws.

|The Volokh Conspiracy |

In a recent post at the Law and Liberty website, conservative legal commentator Mark Pulliam takes issue with defenders of jury nullification, including myself. Jury nullification occurs when jurors acquit a defendant who they believe to be guilty because they conclude that the law he or she violated is unjust or carries overly harsh penalties. Pulliam's main concern is that nullification could undermine the rule of law:

The rule of law is essential to the preservation of liberty. Friedrich Hayek, perhaps this century's pre-eminent theorist of classical liberalism—the political philosophy of freedom—believed that the defining characteristic of a free society is the rule of law, meaning legal rules stated in advance, uniformly applied, without excessive discretion. In Hayek's words: "[W]hen we obey laws, in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man's will and are therefore free." Thus, it is the universal, non-selective nature of law that allows us to be free. In Hayek's view, it is precisely because judges and juries cannot pick and choose what laws to enforce in a particular case "that it can be said that laws and not men rule.

There is some truth to this argument. Relative to a system where laws really are "uniformly applied, without excessive discretion," jury nullification can indeed undermine the rule of law. This sort of consideration is one of the reasons why I used to oppose jury nullification myself. But, sadly, we do not in fact have such a system. In the real world, law enforcement is already characterized by wide-ranging discretion, because we have vastly more laws than we can possibly enforce—and vastly more violators thereof than the authorities can possibly go after. The data indicate that a large majority of adult Americans have violated federal criminal law at some point in their lives—to say nothing of the many state and local laws. Some 52 percent admit to using marijuana in violation of both federal law and that of many states; the true percentage of users is likely higher, as some may not be willing to admit it to pollsters.

With so many lawbreakers to choose from, police prosecutors, and politicians cannot avoid exercising wide-ranging discretion about which ones to target and which ones to let go. For this reason, jury nullification is not introducing an element of discretion in an otherwise rule-bound system. Rather, it serves as a counterweight to the enormous discretionary power already wielded by government officials. I expanded on that point here:

The case for jury nullification today is strengthened by the enormous growth of modern criminal law, which has expanded to the point where almost all of us are guilty of some crime or other…. In a world where almost everyone is a criminal, there is already enormous arbitrariness, because prosecutors can only go after only a small percentage of the many perpetrators. Jury nullification is unlikely to make that situation worse than it already is.

Moreover, many of the crimes on the books are ones that either should not be illegal at all, or should not carry such harsh penalties. As a practical matter, jury nullification is much more likely to target those kinds of laws than ones that rest on a broad social consensus to the effect that the activities they ban should be criminalized and violators subjected to severe punishment.

Even in a legal system with less discretionary authority than our own, jury nullification might still sometimes be justified. Consider a deeply unjust law such as the Fugitive Slave Act of 1850. Even if it were enforced in a predictable, uniform, and nondiscretionary fashion, it would still be a great evil; in some ways it would be an even greater evil than if officials let many violators go. And conscientious jurors would be justified in nullifying it (as some northern juries in fact did). The rule of law is an important value. But it is not the only important value, and can sometimes be outweighed by other considerations.

This is not to say that jury nullification is a magic bullet for all the ills of our criminal justice system, or even that it is always a good thing. Ultimately, the best solution to the problem of overcriminalization is to cut back on the amount of criminal law.

And jury nullification can sometimes be used for bad ends, as well as good ones—such as the notorious Jim Crow-era cases where all-white jurors acquitted whites guilty of racially motivated crimes against African-Americans. In this day and age, where racial prejudice is less severe than fifty years ago, and minorities are themselves able to serve on juries to a far greater extent than in the days of segregation, I believe the benefits of nullification outweigh the risks. But we certainly should not ignore the latter.

In a more ideal legal system, where the amount of law is strictly limited and there are few or no unjust restrictions on liberty, there would be little if any legitimate role for jury nullification. In the far more problematic system we actually have, it is a useful check on government power that deserves support, even as we remain aware of potential downsides.

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  1. And jury nullification can sometimes be used for bad ends, as well as good ones – such as the notorious Jim Crow-era cases where all-white jurors acquitted whites guilty of racially motivated crimes against African-Americans.

    That example ought to be expanded, to include the reconstruction era. In that case, the response involved marshal law, imposed across the South by the federal government’s army, to protect blacks. Then later, during Jim Crow, the notion of double jeopardy got compromised by federal civil rights prosecutions following acquittals by white juries.

    Somin ought to note those examples as conspicuous exceptions to the rule of law, seemingly resorted to in the name of protecting the rule of law. This stuff gets complicated.

    1. Is that John Marshall law (1801 – 1835) or Thurgood Marshall law (1967 ? 1991)?

    2. It is too bad we did not impose martial law across the whole country.

  2. In an ideal world, jury nullification should not exist. But we do not live in an ideal world, and we certainly do not have an ideal legal system.

    I propose that such a “safety valve”/”sanity check” is necessary in any legal system. The question then becomes, where is that function in the American legal system?

    Currently, the grand jury, the trial judge, the petit jury, and appellate courts are supposed to strictly follow the law, no matter how idiotic the law may be. The only flexibility is at the very beginning, with discretion by the prosecutor, and at the very end with the possibility of a pardon or a commutation of sentence. We can dismiss the latter, since those are as rare as snow in July (and a true pardon does not exist in many states.) One can say that prosecutors have the necessary discretion, but in our system of government, discretion without “checks and balances” is not true discretion. The only bad thing that can possibly happen to a prosecutor is that he is kicked out of office several years down the road, but that is not a deterrent, that is “throwing Brer Rabbit in the brier patch.”

    In summary, there is a need for the judicial system to provide a mechanism to challenge a decision to prosecute on other than strictly legal grounds, and apart from the unchecked discretion of the prosecutor. “Jury nullification” is a bad option, but it is the only option available.

  3. In the 600+ trials I sat through, sometimes startling editing was done of electronic recordings in the pre-trial phase. Video and audio recordings would be edited because the judge determined that a jury would be too stupid and/or easily prejudiced if exposed to a raw surveillance or interrogation

    The judge would inform the jury that some exhibits had been “edited”, but in a casual tone that implied that only trivia or dead time had been excised, not significant scenes and statements. I once saw an eye witness/participant to a controversial assault who was made to completely vanish from all images and sound tracks! The jury would never know that she was at the scene of the alleged crime, or that the men were actually fighting over her!

    Advancements in computer editing will allow judges and police or prosecutors to really customize presentable evidence. All this will be done on the evolving certainty of the American legal system that ordinary citizens just can not comprehend the types of bias possible if they were to get the whole truth about things.

    My wish for a new age of jury empowerment (to include the right not to be kept in ignorance of so much anymore that relates to a case) came to a head recently when I received a summons for federal jury duty.

    The case settled out of court, but not before I had thought of answers to questions concerning jury empowerment and/or whether jurors dare disregard extremely specific instructions that the judge issues.

  4. In theory, no.

    You can’t answer this question without reference to the laws that are actually, not just hypothetically, in place. And in the Constitution we actually have, the highest law of the land, the right to trial by jury is expressly guaranteed.

    So, was the jury we were guaranteed a jury irrevocably bound to the instructions of judges, or a jury entitled to nullify? I think it can be established that it is the latter, and that the modern jury is a perversion of the jury system, and thus itself a violation of the rule of law.

    Take a look at the cases that are celebrated, such as the William Penn case. Nullification, almost every one of them. Celebrated by the people who gave us the 6th amendment!

    1. The question asked was not cabined by the Constitution. Though I will admit that I find the philosophical question much more obvious and thus less interesting than the Constitutional one. I think the unanimity of the comments bear me out on this.

      The ‘originalist’ understanding of what a jury of peers is has changed quite a bit as we’ve become more urban and anonymous. As such, it checks the government in a very different way.

      1. The originalist understanding of a jury of peers has changed quite a bit, as the government has moved to neuter it, transforming a real protection into an empty ritual. It barely checks the government at all anymore.

        1. I was more thinking back in the day it was literally peers. People knew each other personally. Nowadays that’s grounds for dismissal.

          Having briefly interned in a prosecutor’s office, I can tell you juries sure do check the government – we lived in fear of the cost and uncertainty of a jury trial.

          1. Considering the more than 80% of criminal cases end in plea deals, that’s no much of a check.

            1. What do you think is one of the drivers of that rate of dealmaking?

              1. Enormous levels of over-charging, so that the defendant is afraid to risk possibly ending up convicted of an over-the top charge, and pleading guilty to the lesser charge starts to look reasonable even if you’re innocent.

                Suppose that there’s some reasonable basis for charging you with jaywalking, but the prosecutor charges you with vehicular homicide instead, on the basis that there was an accident nearby that you caused by crossing the street outside a crosswalk.

                He offers to drop the homicide charge if you plead guilty to jaywalking.

                You gonna go for the homicide trial, instead, because the money to pay a lawyer is just burning a hole in your pocket, and what do you care if you’ve got a 10% chance of spending the next decade in prison?

      2. The originalist understanding hasn’t changed one iota. “The right to a trial by jury preserved by the Seventh Amendment is that which existed at common law at the time the Amendment was adopted, Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935), and the signal feature of the jury trial in 1791 was that the jury?not judges!?had lawful authority to “determine the law as well as the fact in controversy.” Georgia v. Brailsford, 3 U.S. 1, 4 (1793) (jury instructions of Jay, C.J.). By taking ultimate decision-making power out of the hands of judges, the Seventh Amendment preserved one of the “transcendent privileges” of the Englishman: “that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals.” 4 Blackstone, Commentaries *379 (1765).

        “To the Framers’ generation, the right to a jury trial, with one’s peers deciding both the facts and law, was a sacrosanct privilege of citizenship: they fought a revolution to secure it; several Framers refused to sign the Constitution because it did not adequately preserve it. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 343, (1979) (Rehnquist, J., dissenting)

        1. Kind of a catch 22 here; You’ve got, as a juror, the right to nullify, and that’s established law.

          HOWEVER, the judge can lie to you about it. The defense can’t tell you about it. And you can be purged from the jury at any time prior to rendering a verdict if they discover you know about it.

          But, if after all that, the jury happens to nullify without the court getting wind of it in time to dismiss them and empanel a new jury, they can’t do anything about it.

          1. Bingo. Least-worst set of rules.

  5. I am a supporter of Jury Nullification. When asked to defend it, my response is something like “Police can and do exercise discretion and decide not to arrest some people for an illegal act that others were arrested for. Prosecutors can and do exercise discretion and decide not to prosecute some people while prosecuting others for the same crime. Jury Nullification is simply one or more jurors exercising the same discretion and they have more flexibility to do the right thing because they don’t report to anyone or run for public office.”

    1. I would add to that: The President, and the governors of most of the States can and do pardon some people who have committed illegal acts.

  6. What of the jury sworn oath to render a verdict in accordance with the facts and the law? Does it mean anything, especially in “hard” cases for jurors?

    1. If the President were to set up a checkpoint outside the Supreme Court building, and as a condition of allowing the Justices to enter and be seated required them to take an oath to render their verdicts in accordance with the law as the President states it to the Justices, and only allowed such Justices to take their seats as swore such an oath, would the oath mean anything? Or would the Justices still have the right to judge the law by their own judgment and conscience?

      Insofar as jurors may nullify, then a nullification is an act in accordance with the law, while instructions to jurors that they may not nullify are an attempt to usurp the powers of jurors. Any oath another authority requires jurors take to surrender their powers merely describes the form of the attempt by to usurp power from the jury.

      1. The President does not have the power to prevent lawfully confirmed Justices from “taking their seats”.

    2. May a juror decline to take the oath and be dismissed from the jury?

      1. I’d guess the juror would be dismissed into a contempt charge, no? Otherwise, people could stop coming up with phony reasons why they can’t sit and just refuse to be sworn in.

        1. If so, then isn’t the oath taken under duress?

          1. No, I think they do it in the open.

    3. In Callender, Justice Chase “…held that the Constitution guarantees equal justice under law?a right so important, it somehow justified dismantling the English civil jury system that the Seventh Amendment expressly preserved. Chase argued that juries cannot be expected to provide this right:

      “It must be evident, that decisions in the district or circuit courts of the United States will be uniform, or they will become so by the revision and correction of the supreme court; and thereby the same principles will pervade all the Union; but the opinions of petit juries will very probably be different in different states.” …

      Justice Chase was never able to explain why unelected federal judges could be trusted to honor their oaths, whereas jurors who had no interest in the outcome of the case (and, took similar oaths) could not. This was underscored by the historical irony that Chase was impeached for his conduct in that trial, described as “marked ? by manifest injustice, partiality, and intemperance.” Articles of Impeachment Against Samuel Chase, Art. IV, as reprinted in, Charles Evans, Report Of the Trial Of the Hon. Samuel Chase (1805), App’x at 4.”

  7. “Jury nullification” is a bit of a misnomer. It is better understood as a ‘citizens’ veto’–a handbrake, used to control the legislature and/or judge when conventional restraints fail. 2 Works of John Adams 253 (1850).

    It is not a bug, but a feature of the system. The duty of interpreting the Constitution was entrusted to the people in their ad hoc role as jurors, where they were the masters of both fact and law. E.g., Georgia v. Brailsford, 3 U.S. 1, 4 (1793) (jury instructions of Jay, C.J.). The theory was that, in a dispute between the citizen and his government, only jurors?who are not only citizens, but own the government?could mediate fairly. See e.g. Thomas Jefferson, Letter (to L’Abbe Arnoux), Jul. 19, 1789 at 2.

    An integral part of the law, it was (theoretically) preserved in amber in the 7Am. But our Constitution has been subjected to centuries of judicial sodomy, starting with Samuel Chase’s Callender decision (for which he was properly impeached). The rule of law has been supplanted by the rule of judges, and the Bill of Rights is quite literally void for lack of reliable enforcement. See Poindexter v. Greenhow.

    THAT is what people should be debating.

  8. As I have said many times, “the law is the law” is merely the English version of “befehl ist befehl”. The abdication of personal responsibility to state authority is the same in either case.

    1. Surely it depends on both the procedural and substantive elements of ‘the law’. We can’t go from ‘befehl int befehl’ on one extreme to a world where no one feels bound to anything but their own view of what’s right.

      1. If you’re assessing “the procedural and substantive elements of ‘the law'”, you’re already practicing nullification, albeit you may decide to uphold the law.

        And there’s nothing “extreme” about befehl ist befehl, it’s where the ‘rule of law’ argument is today.

        1. I mean, you can continue to believe that. I think it’s an exceedingly silly view.

  9. In the criminal case I mentioned where a witness/participant was made to vanish from the eventual awareness of the jury in pre-trial hearings, I should add that the defendant in this case was severely lectured by the judge not to mention anything about the person erased from the crime scene when the defendant testified in his own behalf.

    In my view, this live redaction edict had the effect of making the defendant’s testimony appear halting and calculated, because the defendant actually did have to think through each question and figure out how to answer it without mentioning what the judge had sternly warned must not be mentioned.

    To my mind, the defendant was actually bullied from the bench into a form of perjury. In a broader sense, it was literally a subtle form of Fake News that we could term Filtered News. Run truth through filters and it is no longer the whole truth and nothing but the truth.

  10. “Relative to a system where laws really are “uniformly applied, without excessive discretion,” jury nullification can indeed undermine the rule of law.”

    Really, that’s it in a nutshell.

    It is fairly easy for a critic to say, “look, a system of rule of law would work better than jury nullification.” But that’s totally irrelevant to the real world, so why bring it up? It’s like saying “a world where nobody committed crime would be better than a world where we had to use fallible courts and juries.” True, but doesn’t apply to the world in which we live.

  11. The law does not rule, it serves the needs of the sovereign people

    If the segment of the people serving on a jury decide that a literal application of the law works an injustice, then they have the right to command the servant {the Law} to obey them and let the accused go.

  12. Like the weather, jury nullification is something everyone argues about but no one can do anything about. So say I as a trial lawyer who’s seen many, many verdicts in civil cases, where it happens, too.

    The more interesting question for me has always been whether courts should give, upon request or otherwise, instructions regarding either a jury’s right to nullify or its lack of a right to nullify. And even to that, the answer to me seems obvious: Instruct as to the law and the jury’s duty to follow it. Never instruct as to a jury’s “right” to nullify. Police arguments of counsel against appealing to that. But acknowledge, privately, that yes, it happens, and that for the reasons Prof. Somin lists here, it’s not always a bad thing in every individual set of circumstances.

    1. I’ve always figured that, once you’re dictating to the defendant’s lawyer what arguments he’s allowed to use in court, the defendant isn’t getting a fair trial anymore.

      The whole evolution of the modern legal system has aimed at taking the jury system, and neutering it. Trying to let the prosecution and judge dictate the outcome of the trial by controlling what the jury hears and sees.

      That’s not “trial by jury” as it existed at the time the 6th and 7th amendments were ratified, it’s just the closest the legal system has been able to get to abolishing it.

    2. Beldar: “Never instruct as to a jury’s “right” to nullify. Police arguments of counsel against appealing to that.”

      lOW, you are asking offticers of the Court to LlE???

      “It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.” Georgia v. Brailsford, 3 U.S. 1, 4 (1794) (jury instructions of Jay, C.J.)

      1. Great quote. No longer good law.

  13. “And jury nullification can sometimes be used for bad ends, as well as good ones – such as the notorious Jim Crow-era cases where all-white jurors acquitted whites guilty of racially motivated crimes against African-Americans.”

    In Jury Nullification: The Evolution of a Doctrine, Clay Conrad points out that many of the cases alleged to be jury nullification during Jim Crow are more complicated than they appear, with the judges, police. and prosecutors often only pretending to seek convictions. And all-white juries drawn largely from the same population were often willing to convict the same defendants when tried for civil rights violations in federal court by prosecutors who were actually trying.

  14. I observed an analog to what happens in criminal law when prosecutors are indifferent and/or unmotivated to obtain convictions in civil law. In the very blue state and city where I worked it became fashionable for public employees to file discrimination complaints and seek compensation. Initially, the class action suits were based on alleged racial bias by their government employer, then came a wave of sexual harassment lawsuits when everyone realized that a payoff was a cinch.

    The reason that discrimination torts were so stunningly successful is that when government agencies are sued, it is government prosecutors who most often have to put on unfamiliar defense attorney hats and fight the claims. However, since all our local prosecutors and the agency heads who had to defend their fiefdoms were Democrats, there was never any serious effort to dispute even the thinnest and most transparent claims of some form of discrimination. I was deposed several times and told the truth about some egregiously fabricated alleged instances, but the testimony of myself and many others simply vanished into limbo.

    The payouts came generously and frequently. Finally, some white males tried the same tactic, but were told bluntly they were not in a protected class. Even if they fought through that, it was absolutely clear that they would face real opposition in their claims, to include the most aggressive investigations of everything they had ever done as employees.

  15. That jury function that is denigrated by the pejorative label “jury nullification” is a legitimate part and parcel of the rule of law, as I explain in my blog on the attached website. I disagree with my old friend Mark Pulliam.

    https://www.kennedyforlaw.com

  16. “Jury nullification occurs when jurors acquit a defendant who they believe to be guilty because they conclude that the law he or she violated is unjust or carries overly harsh penalties.”

    It is worth noting that the jury may not consider the law is typically unjust, merely that it is on this occasion. For example, a juror might, generally speaking, support the law which prohibits incest, but consider that it is unjust to prosecute a couple who only discovered the consanguinity some years after settling into a loving relationship and after they were no longer able to conceive children. Unusual circumstances might make a law which normally seems sensible unjust in its particular application.

  17. Nullification is permitted: If a jury nullifies and acquits, the double jeopardy clause bars a retrial and jurors aren’t punished for nullifying. The more interesting questions concern the extent to which nullification should be controlled at trial.

    1. Can the defense present evidence that (a) a charged crime is a bad law, or (b) reasons specific to the defendant but unrelated to guilt make conviction unjust? I think most states exclude such evidence as irrelevant and bar the defense from arguing for nullification. Illya, is this the right rule? It means a jury’s decision whether to nullify is uninformed, but any other approach plays havoc with the rules of evidence.

    2. If the jury tells the judge a juror is nullifying, should the juror be discharged?
    Decades ago, an attorney in my office tried a child molestation case that hung 11-1 for conviction. Afterwards, irate jurors told counsel the holdout’s stated reason for voting to acquit was that “pussy is pussy.” Had the jury reported this nullification (an aberrant and abhorrent view of the appropriateness of child sex laws) to the judge before reporting a deadlock, should the judge have excused him and appointed an alternate? California says yes. (See People v. Williams (2001) 25 Cal.4th 441.) Illya, what’s your view?

    3. Should juries be instructed to tell the judge if, during deliberations, a juror expresses a desire to nullify? California says “no.” (See People v. Engilman (2002) 28 Cal.4th 439.)

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